To the limits of the constitutional state

How the Federal Government dealt with terror in 1977.

Return of the liberated passengers of the Lufthansa "Landshut" airliner
Return of the liberated passengers of the Lufthansa "Landshut" airliner dpa

In the history of the old Federal Republic, the era now known as the Bonn Republic after the reunification of Germany in 1990, there is probably no other situation that can match the drama and tension of the so-called German Autumn.

The 44 days in September/October 1977 that were marked by the kidnapping and murder of Hanns Martin Schleyer, President of the Confederation of German Employers’ Associations at that time, represented not only the apex of RAF terrorism, but also the most critical escalation of state security in the face of internal threats. The Federal Chancellor of the time, Helmut Schmidt, later described this period as “the most serious crisis of the constitutional state since the foundation of the Federal Republic of Germany”.

Uncompromising stance

When Schmidt received the news that the employers’ leader, who was labelled “boss of bosses” by one weekly magazine, had been abducted by an RAF “commando unit” and the members of his escort shot dead, his response was uncompromising. Under no circumstances would he give in to this murderous act of blackmail intended to force the release of RAF prisoners – including the RAF leadership around Andreas Baader, Gudrun Ensslin and Jan-Carl Raspe, who were serving sentences in Stammheim Prison. The state wanted to prove its steadfastness against terrorism.

Schmidt believed strongly that there should be no repeat of what had happened to him in March 1975: then the Federal Government had conceded in response to the abduction of Berlin CDU Chairman Peter Lorenz and released five imprisoned terrorists who subsequently all committed further crimes, including murder.

Questionable instruments

To cover Schmidt’s actions, the Federal Government of the time created two executive bodies for which there was no constitutional provision and which, to that extent, were neither legal nor legitimate: the small and the large crisis committees that took all decisions during the Schleyer abduction. Their main function was to provide better support for the actions of the SPD/FDP coalition by involving the opposition, in this case the CDU/CSU. Parliament with its consultative and control functions only played a secondary role. In addition to this, there was a news blackout with which the public institutions of the press, radio and television had to comply. As a result, the so-called fourth estate largely became an agent of government.

Another instrument was the Kontaktsperregesetz, a law prohibiting certain forms of contact, which was enacted through expedited procedure. It banned communication between imprisoned RAF members and their lawyers. The government introduced this measure to prevent the supposed control of terrorist activities from the prisoners’ cells. Achieving this involved cancelling a basic right: the inviolability of the relationship between prisoners and their defence lawyers.

Limits of the constitutional state

If you examine these legislative instruments, it becomes clear that both the Federal Government and leading opposition politicians were not only willing to significantly stretch executive power, but also to separate their actions from parliament to such an extent that the latter was practically unable to fulfil its control function.

As a result, the separation of powers required by the constitution was significantly disrupted. The Federal Chancellor went to the very limits of what was acceptable in the constitutional state.

The key situation of the German Autumn was the hijacking of the Lufthansa Landshut airliner and the subsequent liberation of its passengers and crew by the German GSG 9 counter-terrorist unit in the Somalian capital Mogadishu. One-and-a-half years later, Schmidt spoke about this in an interview with Der Spiegel in a way that certainly raises doubt about the legality of his decisions: “Retrospectively I can only thank German lawyers,” he stated there, “for not investigating the constitutionality of all this.”

Talking about his role as Hamburg’s Senator for Interior Affairs during the flood disaster of February 1962, he explained: “We then knowingly and wilfully violated the Basic Law and the Hamburg Constitution and other laws.” Why, wondered some commentators at the time, should it actually have been any different in the autumn of 1977?

Federal Government caught in a dilemma

A number of other aspects also have to be considered in evaluating the political measures taken during the 44 days of the Schleyer abduction. Because it was caught in a dilemma, the Federal Government under Helmut Schmidt was overstretched systematically. Ultimately, any decision on the core question – whether to exchange prisoners and allow themselves to be blackmailed or to not give in to blackmail and hope for the success of police measures – was wrong and contestable.

The Federal Chancellor, his Cabinet and the two crisis committees could not simultaneously save the lives of the hostages and prevent a prolongation, perhaps even a further expansion, of RAF terrorism. One ruled out the other. To that extent, Schmidt, his ministers and their colleagues in the opposition were also complicit in Schleyer’s death. Schmidt explicitly admitted that later.

Personal threat

In addition to this, the leading politicians of the Federal Republic at that time – for example, ex-Chancellor Willy Brandt, Federal Foreign Minister Hans-Dietrich Genscher, Leader of the Opposition Franz Josef Strauss and Helmut Schmidt himself – knew they were in personal danger. As documents prove, they were themselves potential candidates for abduction and therefore also death. Because they were aware of this, they acted in the knowledge that they did not only have to legitimise government action in a constitutional democracy, but simultaneously also to reduce the threat to their person to a minimum. These two points may make their executive acts more understandable, but they do not eliminate all doubt about the constitutional preconditions for their activity.

Wolfgang Kraushaar is a German political scientist at the Hamburg Institute for Social Research. He is one of the best known German researchers into the history of radical left-wing terrorism.